State v. Heather L. Steinhardt, 896 N.W.2d 700

Background

Steinhardt (mother) brought her 12‑year‑old daughter F.G. into the bedroom where Steinhardt’s husband Walter then sexually assaulted the child; Steinhardt sat on the bed and did not stop the assault.
Criminal charges: Count 1 — failure to protect a child from sexual assault (Wis. Stat. § 948.02(3)); Count 2 — first‑degree sexual assault of a child under 13 as a party to a crime (Wis. Stat. § 948.02(1)(e) & § 939.05); Count 3 — child enticement (Wis. Stat. § 948.07(1)).
Steinhardt pled no contest to all counts and received lengthy, partly consecutive sentences; she later moved for postconviction relief to vacate Count 1 on double jeopardy grounds and sought a hearing on ineffective assistance of counsel for not raising the double jeopardy claim.
The circuit court denied relief; the court of appeals affirmed; the Wisconsin Supreme Court granted review.
The Supreme Court analyzed multiplicity/double jeopardy using a two‑pronged test (identity in law/fact and legislative intent to permit cumulative punishment) and applied Strickland for the ineffective assistance claim.

Issues

Issue	Plaintiff's Argument (Steinhardt)	Defendant's Argument (State)	Held
Whether Counts 1 and 2 are multiplicitous (double jeopardy/multiple punishment)	Counts 1 and 2 are the same offense in law and fact (same conduct) so convicting on both violates double jeopardy	Although identical in law (lesser‑included), Counts 1 and 2 are different in fact (distinct volitional acts: bringing child vs. failing to act) and the legislature intended cumulative punishment	Not multiplicitous: counts are identical in law but not in fact; convictions may stand
Whether legislative intent precludes cumulative punishments for Counts 1 and 2	§ 939.66(2p) makes § 948.02(3) a lesser‑included offense of § 948.02(1)(e); legislature did not intend multiple convictions here	Presumption favors legislative intent to permit cumulative punishments for different acts; statutory language, history, nature of conduct, and appropriateness factors support cumulative punishment	Presumption not rebutted; legislature intended cumulative punishments for separate acts; due process not violated
Whether Count 3 (enticement) is multiplicitous with Counts 1–2	(Argued by Steinhardt on reply) Count 3 is supported by same conduct and thus creates multiplicity problems	Count 3 is a distinct statutory offense protecting a different interest (enticement to secluded place) and therefore is different in law; presumption of cumulative punishment applies	Count 3 is not multiplicitous; separate conviction permissible
Whether counsel was ineffective for not advising Steinhardt of a double jeopardy claim	Counsel’s failure to alert Steinhardt to the double jeopardy issue prejudiced her plea decision; remand for hearing required	There is no viable double jeopardy claim, so counsel was not deficient; no prejudice	Ineffective assistance claim fails at the performance prong (no deficient performance); no hearing remanded

Key Cases Cited

Blockburger v. United States, 284 U.S. 299 (1932) (test for whether offenses are distinct for double jeopardy purposes)
State v. Kelty, 294 Wis. 2d 62 (2006) (multiplicity claim waived if it cannot be resolved on the plea‑record)
State v. Eisch, 96 Wis. 2d 25 (1980) (separate sexual acts within one episode can be separate offenses when acts differ in nature)
State v. Ziegler, 342 Wis. 2d 256 (2012) (multiple punishments appropriate where different acts produced new humiliation/danger to the child)
State v. Anderson, 219 Wis. 2d 739 (1998) (two‑pronged multiplicity test: identical in law/fact, then legislative intent)
State v. Trawitzki, 244 Wis. 2d 523 (2001) (standards of review for double jeopardy and ineffective assistance claims)
Strickland v. Washington, 466 U.S. 668 (1984) (two‑part test for ineffective assistance of counsel)
State v. Sauceda, 168 Wis. 2d 486 (1992) (discussion of multiplicity and legislative intent)